dissenting.
I find inconceivable the majority holding that the record in this case fails to demonstrate prejudice to appellant Seeley arising out of the admission of evidence of co-defendant Carey’s prior bad acts. This evidence had absolutely no connection to See-ley, could not have been introduced against him in a separate trial, and posed the substantial risk of conviction because of his association with one having a history of wrongdoing. Therefore, the admission of co-defendant Carey’s prior offenses prejudiced appellant’s right to a fair trial, and the court should have awarded the accused separate trials.
The Eighth Circuit Court of Appeals addressed this issue in United States v. Engleman, 648 F.2d 473 (8th Cir.1981). In that case, two defendants were tried jointly for engaging in a scheme to defraud insurance companies by insuring the life of an individual and then killing him. The prosecution presented evidence that one of the defendants had participated in an identical scheme 13 years earlier. The Court of Appeals reversed the other defendant’s conviction, holding that the admission of evidence of his co-defendant’s prior offense prejudiced his right to a fair trial, and severance was required.
*243The same reasoning applies in the case at bar. The State should be required to make its case against Seeley without resort to the fact of his association with one who had been tried previously for rape.
A second ground for reversal of Seeley’s conviction is the failure of the trial court to instruct the jury on the lesser included offense of second degree sexual assault. Contrary to the majority holding, the statutory definition of second degree sexual assault, applicable in the instant case, constitutes a lesser offense necessarily included in the offense of first degree sexual assault, under our holdings in Balsley v. State, Wyo., 668 P.2d 1324 (1983), and State v. Selig, Wyo., 635 P.2d 786 (1981).
In deciding this question, it is necessary to examine the elements of first and second degree sexual assault since, under Balsley and Selig, an offense constitutes a lesser included offense if every element of the proposed lesser offense is also included in the charged, greater offense. Section 6-2-302(a)(i), W.S.1977, under which Seeley was convicted, provides:
“(a) Any actor who inflicts sexual penetration or sexual intrusion on a victim commits a sexual assault in the first degree if:
“(i) The actor causes submission of the victim through the actual application, reasonably calculated to cause submission of the victim, of physical force or forcible confinement; * * * ”
Section 6-2-303, W.S.1977, defines sexual assault in the second degree:
“Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
* * sfc sfs * *
“(ii) The actor causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution; * * * ”
As the majority point out, the statutory definition of second degree sexual assault contains language differentiating the offense from first degree sexual assault. That is, second degree sexual assault expressly occurs only “under circumstances not constituting sexual assault in the first degree.”
We held in Jahnke v. State, Wyo., 692 P.2d 911, 919 (1984), that one statute is not prevented from inclusion in another merely because the lesser crime contains terms which serve to negate some element of the greater offense. The question before us in Jahnke was whether manslaughter constitutes a lesser included offense of first degree murder since manslaughter, unlike murder, requires the commission of a homicide “upon a sudden heat of passion.” We held that the phrase, “upon a sudden heat of passion,” does not amount to a true element of manslaughter but simply describes the absence of the malice necessary for murder.
In similar fashion, the differentiating phrase in the statutory offense at issue in the case at bar does not create a distinct element, but, instead, emphasizes the enhanced requirements — physical force in this case — of first degree sexual assault. By focusing on the true elements of the defined crimes, it becomes clear that one who inflicts sexual intrusion and causes the submission of the victim through physical force (first degree sexual assault) also inflicts sexual intrusion and causes submission of the victim “by any means that would prevent resistance by a victim of ordinary resolution” (second degree sexual assault). Thus, second degree sexual assault is necessarily included within the greater offense of first degree sexual assault under Balsley v. State, supra.
Appellant Seeley requested an instruction on second degree sexual assault. The facts support the giving of such instruction since the element of the actor’s application of physical force was in contest. The trial court refused to give the proffered instruction, and appellant is entitled to reversal of his conviction.